Bharat Sanchar Nigam Ltd v. Jagdish Paul & Ors.

3. on Septernber 13,2007 BSNL had noljfied the'BSNL Management Trainees' Recruitment Rules 2007 when only 300 posts at tho entry level E-3 were sanctioned. As per the Rules, 50Yo posts werb to be WP(C) 656312012 & conuected tnatters Page 3 o1' l0 t t> lrfilled up f1om alnongst extemal candidates on the basis of a competitive examination and remaining 50% from the departtnental candidates possessillg the eligibility conditions through a lirnited internal cornpetitive exarninaiion, and we highlight that a degrec in Engineering was the 'rilimum education qualification. In other wotds, all inlemal candidates below the Management Trainee cadre including Junior Technical Assistants were eligible to compete as long as they possessed tlie necessary educational clualifications. The intemal candidates were tlot eligib]e for any age relaxation. Upper age limit for external candidates was 30 years' Meaning ihereby i1the external 50oZ quota the internal candidates could parlicipate as external candidates but provided they had not crossed the age of30 years.

4. The posts. of Management Trainees were enhanced to 600. Sirnultaneously an exercise was initiated to either atnend or bring into force new Management Tiainee Recruitment Rules. On Novetnber 17,2008,:.:tt adverlisement was issued inviting applications to fill up the vacaucy of the 300 posts of Management Trainees in the Extemal Quota and on Novembet 28,2001an advertisement was issued to filI up the vacallcy of the 300 po-sis of Management Trainees in the Internal Quota. Repl'eseutations werc received fiorn the officers in the Executive Cadre refen'ing to cettai,.lr assurances made to limit plomotions in the Internal Quota Lo only officers,in the Executive Cadre i.e. to exclud.e Telecom Technical Assistants who werc in the non-executive cadre and simultaneously amend the l{ules to permit all internal candiclates including Telecom Technical Assistants to compete against the external quota by granting age relaxation to the internal caldiclates. Thus, the selection process through the open competitive examination for. the extemal quota and the internal linrited departmental examination fbr the intelnal quota were deferred and on Scpternbcr 01, 2009 WP(C) 656312012 & connected tnatters Page 4 o['10 ".t.' t t lv[1] Ll I 'BSNL Management Trainee' Recrr-ritment Rules '2009 wcre issuecl notifuing 600 posts of Managernent Trainees with 50% in the external quota and 50% in the internal quota. Pertaining to the extet"nal quota age relaxation for depaftmental candidates was provided for. For intemal 'candidates only officers in the Executive cadre i.e. Junior'fcchnical Officers and above were made eligible. Fresh advertisements were issuecl inviting applications fiom the internal candidates to take the limitecl internal competitive examination. The result was a large nunrber of Gracluate Engineers working as Telecorn Technical Assistants approaching tlie Central Adrninistrative 'fribunal under various Original Applicatious, all o1'which lrave been decided by a cornrnon order dated July 28, 2010 which has been challenged in the captioned eight writ petitions.

5. The contention ulged by the applicants before the Tribunal was that since the selection process for the intemal candidates had cotnmenced on Novernber 28,2008 and the 'BSNL Management'fi'ainees' Recruitment' Rules 2009 were prornulgated on Septernber 01, 2009, it being settlecl law that vacancies have to be filled up fi'orn amongst the eligible candidatcs in the year of the vacallcy as per the then existing l{ecruitment Rules, BSNI.could not fill up the vacancies under the 2009 Rules. Ihey also pleadeclthat tlre Rules o'f 2009 did not supersede or repeal the Rules notified in the year

2007. They also pleaded a lack of rational criteria in excluding Telccom Technical Assistants as eligible candidates in the inteur.al quota. All contentions have found favour with the Tribunal resulting in a direction to BSNL to consider even Telecom Technical Assistants as eligible to take the lirnited internal cornpetitive exatnination.

6. Now, as regalds the finding by the 'l'r'ibunal that exclusion of Telecom Technical Assistants violates Article 14 of the Constitution of India WP(C) 656312012 & connected matters Page 5 o[10 we need to only highliglrt that the Tribunal has overlookecl the fact that the post of Telecom Technical Assistant is in the iron-executive cadre and the post of Junior 'felecom Assistant and above are in the exectttive cadrc. Thc Tribulal has overlooked the already existing category of ernployees of BSNL being in two different cadres i.e. the rlon-executivc cadre and the executive cadre with the folmer being Group 'C' posts and the latter being Group 'B' post. Had the Tribunal noted said fact it wor-rlcl have becotne apparent that the question of predicating all al'glrlllent on Lhc plea of being discriminated does not even ar:ise for consideratiou because only ecluals are capable of being discriminated i.e. treated uneclually. The question of even consiclering the plea of discrirnination when thcrc are two distinct grcups does not arise. Thus, one of the three f,rndings returned b), the Tribunai is the result of overlooking material facts in the context of the cadre strltcture in BSNL.

7. The finding by the Tribr-rnal that the Rules of 2009 do nol. supersede the Rules of 2007 is too technical a finding aud emanates fi'om 1hc fact tlrat the Rules o'f 2009 do not expressly overrule the Itulcs o12007. l3ut, the judicial approach has not to be technical or pedantic. It is the substauce and not the fonn which rnatters. A perusal of the two Itules would leveal that every aspect of recruitrnent is covered by the span of tlte sweep of the Rules of 2009 i.e. each area pertaining to a Recruitment Itule rvhich encorrrpassed flre sweep of the 2007 Rules stands spanned. Thus, with the prornulgation of the Rules of 2009 it is but apparent that thc Rr-rles sf 2007 stood impliedly superseded.

8. 'Ihus, the second independent limb found lavourable to thc respondents by the Tribunal is a result of non.focussed zrpproach 1o the issues. WP(C) 6563/2012 & counected nrattels Page 6 of l0 (l' tl lp g. Now the third issue, which is at the heart of thc tnatter. The law that posts have to be filled up with reference to the year of the vacaucy alcl fiom amongst the eligible calclidates as of the year gf the vacancy applyilg the law in folce as of the year of the vacancies has lirnited application to only when the posts afe in the promotion c1r-tota. 'I'hc satle cloes not hold true when the posts are to be fillecl r-rp by direct recluittneut. It is also settled law that pertaining to direct recruitrnents if the selection p1ocess commeuces for the vacant posts aS per existing Rules and for Sone reasons the vacancies are not fillecl trp and i[1] the interrcgnum Rules are anended, the said posts have to be filted up as pet'the atnetrdcd [tules' In tlre decision reported as l99g (4) scc 202 Raia.sthar" Public service commission v. clcanan Ram, & Anr. pertaining to adveriiscmetlts issued on Novernber 05, Igg[3] for recruiting 23 Assistant Director (Junior) whert 'Rajasthan State Agricultural Malketing Service Rules 1986' were iu force' the Rajasthan Public Service Comrnissiou was requestcd by the Statc ol' ftajasthan to keep on hold the recruittnent process and on April 19, 1995 thc Rules were arncndecl. The issue game up whether ol' not the Rccruitllent process hacl to be finalizecl with reference to the amendcd ltules. 'fhc Suprene Court categorically held that vacancies being 23 in numbet' may have pertained to the year 1993 but were required to be fillecl up as per thc.-arnencled Rules of 1995. U 10. The decisiol of the Supreme Courr highlights the principle of law which we have noted herein before. il. But a worcl lnore needs to be spoken on the subject for the reason the respoldents heavily relied upon the dccision of thc Supreme Conrt repoded as 1988 Snpp. SCC 740 P.Ganesh,var Rao v. State qi'A.P' wherein the Supreme Court had interpreted the effect of the atnendment WP(C) 656312012 & connected rnatters l'}age 7 of 10 1,[7] I macle to the Rules pertaining to the appointmeut of Assistant linginecrs as relatable to future vacancies alone and not the vacancies which had'arisen prior to the arnendmelt rnade. We sirnply would highlight that the special Itules amending the existing Rules had the crucial words 'i7%o/o of stftstantiye vacatxcies arising in the category of Assistant Engineers sldl be fitled by direct recrtritrnent.' In view of the rvord 'arisittg ' the Suprelne Court held that the amendrnent was clearly intended to aPply to vacancies alising, meaning thereby coming into being after the Rules we1e amended.

12. We find that in the impugned decision the f'ribunal has rclied Lrpon the said decision in paraglaph l0.

13. The Tribunal has overlooked the fact that the decision in p.Ganeshwar Rao's case (supra) was with respect to the language o1- the amended Rule coutaining the word 'arising'.

14. In the instant case the 2009 Rules do not have any such expression and thus the legal position would bc as dcclared in Chctn'an Rant's case (supra) provided we find that the appointtnctlt to the post in question is by way of a direct iecluittnent and not a promotion.

15. We have noted helein above that there is a three-tier cadre of posts in BSNL. At the lowest rung is the noll-executive cadre. 'fhe next cad1e above is that of the executives ancl at the top is the Management caclre. llhe post we are concerned is at the lowest level in the Management cadre. Rule 4 of the arlended Rules states that 'The Management I'rainee shall be appointed in IDA Scale (E-3) of 724900-50,500/-.' Rule 5 states that thc ilitial strength of Management'frainees shall be 600. Rulc 6 pertains to the rl1anl1er of recruitrnent to the stleam of Management 'I'r'ainees emd lists two str.eams: (i) appointment fi'orn eligible external candidates; (ii) appointmenl fiom eligible internal candidates. Rule 7 bifurcates the two streams into WP(C) 656312012 & connected tnattet's I)age 8 of l0,'i\ ( 50Yo each.

16. It is'thus apparent that the post in eUestion is to be filleci up by direct recruitmeLt fiom two strearns and merely becausc one stt'eatn of eligible candidates is internal would not make the post a protnotional post.

17. Assuming for the sake of argurnent that the post is a promotional post, even then we find that the exception carved out to the general principle of law that vacancies in the promotion posts have to be filled up fi'om amongst the eligible candidates iu the year of the vacancy and as per the then existing Recruitment Rules is as was declared by the Supreru.e Court in the decision repofted as 1997 (3) SCC 509 Dr.I(.Ramr'ilt't & Anr. v. Dr.Surytapralcash Rao & Ors. wlierein a couscitltrs clecision taken I in the year 1988 not to fill up prornotional posts pending anellclment to the A.P. Anirnal Husbandly Service Special Rules 1977 resulting in the A.P.Animal Flusbaldry Service Rules 1996 being promulgated repealing the Ig77 Rules was helcl justifying the decision to filI up thc vacancies which had arisen prior to the amendments by applying the atncnded Rule. The Court opined that the executive is entitled to take a decision trot to fill up the existing vacancies as on th.e relevant date and that nobody acquires a vested rigfit for being considered for promotion as aud when the vacaucy arises-

18. A residual issue sparked by the'fribunal neecls to be dealt with. The Tribunal has held that people join service with the hollc and expectation of being promoted. The'fi'ibunal has found the said expectation of Telecom Technical Assistants to be unreasonably irnpinged upoll. '['he T'ribunal has overlooked the fact that hitherf:ofore the'felecom l['echnical Assistanls could not cornpete for the 50Yo extelnal seats due to the age relaxation provision being missing, but can now compete through the said stream. 'I'hus, thc rigfut to compete which hithertofore was available in the internal stream may rl WP(C) 6563D012 & connected nlatters Page 9 of l0, '', 1s vl have been extinguished but the sarne right has been createcl in thc extctnal stream. Besides, the Telecom Technical Assistants can carll prolllotiou to the next above post of Junior' 'felecotn Officer i.e. the lowest post in the executive cadre and thereafter can lnove up the executive ladder.